The Court of Appeal (CoA) was requested to examine a deportation case and whether such deportation was in breach of Article 3 of the European Convention on Human Rights (ECHR).
Background:
PG is a 50-year-old Sri Lankan of Tamil ethnicity who entered the UK on 8 January 2008 on a student visa. His leave was valid until 30 April 2011. On the 20th of April 2011, PG applied for an extension of his stay as a student which was rejected for being incomplete. On the 14th of August 2011, PG was arrested in relation to a number of sexual offences. Following his conviction, the Secretary of State sought to deport him.
PG claimed asylum. On the 2nd of April 2012, PG was notified of his liability to be deported and responded that, as a gay man, he would face persecution if forced to return to Sri Lanka. His claim was initially rejected, but was later granted discretionary leave to remain until the 11th of April 2014 due to a perceived risk of inhuman or degrading treatment.
He applied for further leave which was refused on the 3rd of May 2017 and the decision to deport him to Sri Lanka had been maintained on the basis that PG had not rebutted the presumption of his danger to society, and that his deportation would not involve a breach of his Article 3 ECHR rights. On the 12th of May 2017, PG sought to appeal against the order to the First-Tier Tribunal (FTT). The FTT concluded, based on the evidence, that it was not safe for PG to return to Sri Lanka.
The Secretary of State for the Home Department (SSHD) appealed to the Upper Tribunal (UT). The Judge agreed that the FTT made a material error of law by not explaining why postdated material provided the necessary evidence to depart from the country guidance case of LH & IP. After rehearing the case, the UT Judge allowed the appeal on Article 3 grounds.
Decision:
The CoA found that the UT did not adequately analyse the evidence or provide sufficient reasons for departing from the established country guidance on the treatment of gay men in Sri Lanka.
The Court first noted that PG is a foreign criminal for the purposes of Section 32 of the UK Borders Act (UKBA) 2007 and was, therefore, liable to be deported unless one of the exceptions applied. One of these exceptions is that the deportation would breach the person’s rights under the ECHR. The approach to alleged breaches of Article 3 is found in Khasanov & Rakhmanov v Russia (GC) (2022). Courts should not only focus on the risk of ill-treatment directly by the State, but also the State’s response to those ill-treatments, as established in JK & Others v Sweden (GC) (2016).
The UT should have followed the country's guidance concerning the treatment of gay men in Sri Lanka as set out in LH & IP. The UT should have followed the guidance unless “very strong grounds supported by cogent evidence, are adduced justifying their not doing so.” The Judge noted that “there was no issue but that PG was a gay man, and that unless his return amounted to a breach of his Article 3 ECHR rights, the SSHD was required to deport him to Sri Lanka.”
The case was remitted to the UT for a fresh hearing, emphasising the need for a detailed examination of both the general situation in Sri Lanka and PG's specific circumstances.
Implications:
This case highlights the need for courts and tribunals to provide clear reasoning when departing from established guidance. It is also clear that courts will only allow such departures under very strict circumstances. Courts must take into account both general and individual risk factors.
